The constitutional dilemma: First amendment dissent versus fifth amendment silence

“ The effect of the Court's 'balancing' here is that any State may now reject an applicant for admission to the Bar if he believes in the Declaration of Independence as strongly as Anastaplo and if he is willing to sacrifice his career and his means of livelihood in defense of the freedoms of the First Amendment. But the men who founded this country and wrote our Bill of Rights were strangers neither to a belief in the 'right of revolution' nor to the urgency of the need to be free from the control of government with regard to political beliefs and associations. ”

“ Our Constitution sets up a federal union, not a monolith.
This Court has heretofore held that various provisions of the Bill of Rights such as the freedom of speech and religion guarantees of the First Amendment, the prohibition of unreasonable searches and seizures in the Fourth Amendment, the privilege against self-incrimination of the Fifth Amendment, and the right to counsel and to confrontation under the Sixth Amendment "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment." ”

“ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production) , 076P-R000004125_0001 (December 28, 2020, email from Kerik to Meadows) . When our courts weigh evidence to determine facts, they often infer that disputed facts do not favor a witness who refuses to testify by invoking his Fifth Amendment right against incriminating himself. ”

“ Today we allow invocation of the Fifth Amendment to serve, in effect though not in terms, as proof that an alien lacks the 'good moral character' which he must have under § 19 (c) of the Immigration Act in order to become eligible for the dispensing powers entrusted to the Attorney General.
The import of what we do is underlined by the fact that there is not a shred of evidence of bad character in the record against this alien. The alien has fully satisfied the requirements of § 19 (c) as shown by the record. ”

“ It should be noted at the outset that the First Amendment provides that "Congress shall male no law . . . abridging the freedom of speech, or of the press." That leaves, in my view, no room for governmental restraint on the press. ”

“ I repeat what I said in the New York Times case that 'An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment." ”

“ At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.
[T] he [p51] freedom to speak one's mind is not only an aspect of individual liberty — and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-504 (1984) . ”

“ First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. ”

“ Great secular causes, with small ones, are guarded. The grievances for redress of which the right of petition was insured, and with it the right of assembly, are not solely religious or political ones. And the rights of free speech and a free press are not confined to any field of human interest.
The idea is not sound therefore that the First Amendment's safeguards are wholly inapplicable to business or economic activity. ”

“ You really believe in freedom of speech if you are willing to allow it to men whose opinions seem to you wrong and even dangerous; . . . Compare Warren, "The New Liberty Under the Fourteenth Amendment," 39 Harvard Law Review, 431, 461. ”

“ Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor. ”

“ Moreover, the Hateful Conduct law is a content based regulation. The law requires that social media networks develop policies and procedures with respect to hate speech (or “hateful conduct” as it is recharacterized by Defendant) . As discussed, the First Amendment protects individuals’ right to engage in hate speech, and the state cannot try to inhibit that right, no matter how unseemly or offensive that speech may be to the general public or the state. ”

“ In a fleeting existence we have but little time to find truth through discourse. No better illustration of the immediacy of speech, of the urgency of persuasion, of the preciousness of time, is presented than in this case. Here the citizens who claim First Amendment protection seek it for speech which, if it is to be effective, must take place at the very time and place a grievous moral wrong, in their view, is about to occur. The Court tears away from the protesters the guarantees of the First Amendment when they most need it. ”

“ There is ample evidence that the clear and definite language of the first amendment was intended to preclude the very problem of balancing assumed by the Court. The first amendment holds that the interest of society in freedom of expression [8] is more important than the harm that might flow from obscene material. The very interest in protection from injury from obscene material would be better served by allowing each individual to make a free appraisal of pornographic material. ”

“ Seditious conduct can always be punished. But the command of the First Amendment is so clear that we should not allow Congress to call a halt to free speech except in the extreme case of peril from the speech itself. The First Amendment makes confidence in the common sense of our people and in their maturity of judgment the great postulate of our democracy. Its philosophy is that violence is rarely, if ever, stopped by denying civil liberties to those advocating resort to force. ”

“ Free speech is subject to prohibition of those abuses of expression which a civilized society may forbid. As in the case of every other provision of the Constitution that is not crystallized by the nature of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its usefulness nor compels its paralysis as a living instrument. ”

“ The First Amendment does not confer an absolute right to speak or publish, without responsibility, whatever one may choose. The extraordinary protections afforded by the First Amendment's guaranty of free speech and press carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly, a duty widely acknowledged but not always observed by editors and publishers. It does no violence to the value of freedom of speech and press to impose a duty of reasonable care upon those who would exercise such freedoms ”

“ But the fact that a witness expresses his intention in vague terms is immaterial so long as the claim is sufficiently definite to apprise the committee of his intention. As everyone agrees, no ritualistic formula is necessary in order to invoke the privilege. In the instant case, Quinn's references to the Fifth Amendment were clearly sufficient to put the committee on notice of an apparent claim of the privilege. It then became incumbent on the committee either to accept the claim or to ask petitioner whether he was in fact invoking the privilege. ”

“ Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. ”

“ Before analyzing the precise issue that is presented to us, it is nevertheless appropriate to recall how firmly embedded in our constitutional jurisprudence is the proposition that the several States have no greater power to restrain the individual freedoms [p49] protected by the First Amendment than does the Congress of the United States.
As is plain from its text, the First Amendment was adopted to curtail the power of Congress to interfere with the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience. ”

“ The hour of debate has passed, the hour of action has sounded. In opposing solemn Acts of Congress, which, according to the Constitution, are now the supreme law of the land, passed for the national defence,—in opposing the Proclamation of the President,—nay, in discouraging Freedom,—you are as bad as if you discouraged enlistments. It is through Freedom, as well as arms, that the war will be waged; and the same loyalty that supports the one is now due to the other. The discouragement of enlistments is recognized as seditious and traitorous ”

“ I have always believed that the First Amendment is the keystone of our Government, that the freedoms it guarantees provide the best insurance against destruction of all freedom. At least as to speech in the realm of public matters, I believe that the "clear and present danger" test does not "mark the furthermost constitutional boundaries of protected expression," but does "no more than recognize a minimum compulsion of the Bill of Rights." ”

“ Those who wrote the First Amendment conceived of the right to free speech as wholly independent of the prior restraint of anyone. The judiciary was not granted a privilege of restraint withheld from other officials. For history proved that judges too were sometimes tyrants. ”

“ Therefore the People, supposing itself forced to choose between persuasion, the ballot, and direct physical force, selects the last. If I were forced to the alternative of leaving a question unsettled or attempting one of three ineffectual means of settling it, I think I should leave it unsettled. It would seem the wiser course to accept the situation. But the situation is not so hopeless. There is a fourth method of settling the difficulty, of which the People seems never to have heard,—the method of passive resistance, the most potent weapon ever wielded by man against oppression. ”